Category: Working Time/Rest Periods

If you are you will probably be aware of Aidan O’Brien’s problems
with the WRC (Workplace Relations Commission) and then the Labour Court
concerning breaches of the Organisation of Working Time Act 1997.(You
can read about those cases here).

1. An activity in
which the employee is regularly required by the employer to travel distances
of significant length, either from his or her home to the workplace or from
one workplace to another workplace.

2. An activity of a
security or surveillance nature the purpose of which is to protect persons or
property and which requires the continuous presence of the employee at a
particular place or places, and, in particular, the activities of a security
guard, caretaker or security firm.

3. An activity
falling within a sector of the economy or in the public service—

(a) in which it is foreseeable that
the rate at which production or the provision of services, as the case may
be, takes place will vary significantly from time to time,

or

(b) the nature of which is such that
employees are directly involved in ensuring the continuity of production or
the provision of services, as the case may be,

and, in particular,
any of the following activites—

(i) the provision of
services relating to the reception, treatment or care of persons in a
residential institution, hospital or similar establishment,

(ii) the provision
of services at a harbour or airport,

(iii) production in
the press, radio, television, cinematographic, postal or telecommunications
industries,

(iv) the provision
of ambulance, fire and civil protection services,

(v) the production,
transmission or distribution of gas, water or electricity,

(vi) the collection
of household refuse or the operation of an incineration plant,

(vii) any industrial
activity in which work cannot, by reason of considerations of a technical
nature, be interrupted,

(viii) research and
development,

(ix) agriculture,

(x) tourism.

Neither the WRC nor the Labour Court accepted this argument
and O’Brien appealed the case to the Civil Courts.

This problem had arisen as a consequence of the Industrial Relations
(Amendment) act 2015 defining ‘agriculture’ as

‘agriculture’ means—

(a) (i) the production of animals, including the
production of meat and other animal produce intended for human consumption,

(ii) the sorting and packing of meat and other animal
produce, and

(iii) the production, sorting, and packing of crops, including
fruit and vegetables, intended for human or animal consumption,

19th December, 2018 Regulation

These Regulations
clarify that the term “agriculture” in the Schedule to the Organisation of
Working Time (General Exemptions) Regulations 1998 (S.I. No. 21 of 1998),
includes, inter alia, “the caring for or the rearing or the breeding or
training of racehorses” for the purpose of those Regulations.

This means that the exemptions from certain sections of the
Organisation of Working Time Act 1997 now apply to workers who are engaged in
the “the caring for or the rearing or the
breeding or training of racehorses”.

As an employer do you run the risk of breaches of the maximum number of hours permitted in the working week?

The Labour Court has found in favour of an employee, Grainne O’Hara, who claimed she worked excessive hours and awarded her compensation of €7,500.

The employee’s case

The employee claimed she was required to work approximately 60 hours per week. This is a breach of the Organisation of Working Time act 1997 which prohibits a working week in excess of 48 hours over a reference period.

She had commenced employment as a business development executive which involved a good deal of travel but her contract of employment was for 40 hours per week.

The evidence provided by the employee involved emails sent and received on a regular basis after 5 pm and up to midnight. She also produced copies of emails sent after midnight and before normal starting time, and this evidence was not contradicted by the employer, Kepak Convenience Foods Unlimited Company, as it failed to provide the full email records involving this employee, despite being requested to do so by the employee.

The employer’s case

The employer claimed that the employee was trained to do her job with the help of an induction programme and she was simply inefficient in carrying out her job. The employer claimed there was no need for her to work in excess of 48 hours per week and the volume of work she had to undertake was in line with that of her colleagues.

The law

Section 15 Organisation of Working Time act 1997:

Weekly working hours.

15.— (1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “ reference period ”) that does not exceed—

( a) 4 months, or

( b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5 , it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

( c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

(2) Subsection (1) shall have effect subject to the Fifth Schedule (which contains transitional provisions in respect of the period of 24 months beginning on the commencement of that Schedule).

(3) The days or months comprising a reference period shall, subject to subsection (4), be consecutive days or months.

(4) A reference period shall not include—

( a) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),

F8 [ ( aa ) any period during which the employee was absent from work while on parental leave, force majeure leave or carer’s leave within the meaning of the Carer’s Leave Act, 2001, ]

( b) any absences from work by the employee concerned authorised under the Maternity Protection Act, 1994, or the Adoptive Leave Act, 1995, or

( c) any sick leave taken by the employee concerned.

(5) Where an employee is employed in an activity (including an activity referred to in subsection (1) (b) (i))—

( a) the weekly working hours of which vary on a seasonal basis, or

( b) as respects which it would not be practicable for the employer concerned to comply with subsection (1) (if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature,

then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court under section 24 may specify, for the purposes of subsection (1) (c), a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months).

Section 25 (1) of the Organisation of Working time Act, 1997 states:

25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

Also, section 25(4) states:

4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

What the Labour Court found

Firstly, it found that the employer did not keep records as required by section 25(1). The consequence of this is that the employer must prove compliance with the act.

However, the Court did not find that the employer managed to discharge this burden of proof and accepted the evidence of the employee.

The Labour Court also focused on the work ‘permit’ in section 15 of the act: An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours

The Labour Court found that even if the evidence of the employer was that the employee was not required to work in excess of 48 hours to do the job the fact remained that she proved that she had, in fact, worked in excess of 48 hours. Thus, the employer was in breach as the employer’s obligation is not to ‘permit’ the employee to do so.

Moreover, The Court notes that the Respondent did not produce a full file of the Complainant’s emails and offered no evidence to contradict her evidence in this regard.

In conclusion the Labour Court found that the complaint was well founded and awarded her compensation of €7,500. She had previously been awarded €6,240 by the Workplace Relations Commission and this Labour Court hearing was an appeal of that decision.

Takeaway: digital presenteeism and hard evidence

Firstly, the Chartered Institute of Personal Development (CIPD) in the UK claims that there is a growing problem of “presenteeism” in the workplace.

This originally started out as the phenomenon of people showing up for work even when they were sick but the use of digital technology in the workplace has contributed to a growing social problem of “digital presenteeism”.

The use of laptops, smartphones, tracking devices, apps are all leading to an erosion of the distinction between work life and home life and the problem of digital presenteeism.

Secondly, many employment disputes which end up in the Workplace Relations Commission, the Labour Court, or Civil Court may not have any hard, documentary evidence and may well be a swearing match between the employee and employer. By this I mean the employee will claim one thing was said or happened and the evidence of the employer will be in direct contradiction of this.

In this case, and those involving technology such as emails or apps or tracking devices, there was hard evidence of emails sent and received outside the normal working hours and this evidence was critical in the employee’s win.

The world class racehorse trainer Aidan O’Brien has recently had his problems with Irish employment law. Firstly, the Workplace Relations Commission (WRC), and then the Labour Court have found against the Ballydoyle set up.

The background to his problems arise from the Organisation of Working Time Act, 1997 (‘OWT’).

The Organisation of Working Time ACt 1997 sets out the law in relation to working time, rest breaks, annual leave, weekly working hours, and so forth. There is an exemption in the act, however, for agricultural workers.

The Workplace Relations Commission, pursuant to section 28 Workplace Relations Act, 2015, had served four compliance notices on O’Brien’s world renowned set up at Ballydoyle, Co. Tipperary. These notices were in respect of working hours of the stable staff and breaches in contravention of the Organisation of Working Time Act, 1997. The act, however, makes provision for an exemption from certain working time provisions for workers involved in agriculture.

The question then arose as to whether O’Brien’s employees, being involved in racehorse stables and stud farm activities, were involved in agriculture. The WRC did not agree.

O’Brien’s organisation appealed the decision of the WRC in issuing compliance notices and argued at the Labour Court appeal that they were entitled to the exemption for agriculture workers. It argued that his concern was not bound by the provisions of the OWT Act, 1997 in respect of working time and rest periods by virtue of their involvement in ‘agriculture’.

The WRC argued that the activity of breeding and training racehorses fell outside the definition of agricultural activity as apprehended by the OWT act, and referred to the definition of agriculture set out in Industrial Relations (Amendment) Act 2015. It states:

‘agriculture’ means—

(a) (i) the production of animals, including the production of meat and other animal produce intended for human consumption,

(ii) the sorting and packing of meat and other animal produce, and

(iii) the production, sorting, and packing of crops, including fruit and vegetables, intended for human or animal consumption,

on farm land (within the meaning of section 664 of the Taxes Consolidation Act 1997 ), and

The Labour Court rejected Ballydoyle’s argument and held that the WRC orders were to stand as it found that the business involved fell outside the definition of agriculture. This decision can have serious implications for the bloodstock/racing industry if it is not overturned by the Circuit Court.

It remains to be seen whether O’Brien appeals the decision to the Circuit Court, which he is entitled to do.

UPDATE 25th January, 2018

It has been reported that O’Brien/Ballydoyle have appealed the Labour Court decision to the Circuit Court.

Tyco was a Spanish security firm who closed all their regional offices across Spain in 2011. This meant that the employees did not have a fixed place of employment and had to travel to all their jobs to install security equipment.

The workers brought a case to the Court of Justice of the European Union (CJEU) arguing that time spent travelling to work should be counted as working time. The CJEU agreed with them.

This decision applies to workers who do not have a fixed place of work and are required by their employers to travel to service clients. This could include, for example sales reps, care workers or tradesmen employed by companies.

This could result in employers having to pay such workers for time spent travelling to and from work. The journey from home to their first work appointment, and the journey from their last appointment to home in the evening, must be included when pay, working hours and rest breaks are being calculated, according to the CJEU decision.

Employees may also be entitled to a reduction in hours actually spent working, as travelling time would also go towards the 48 hour maximum working week permitted under EU working time legislation.

In Ireland, the Organisation of Working Time Act 1997 (“the Working Time Act”) implemented the original Working Time Directive (Council Directive 93/104/EC) into Irish law. The Working Time Act sets down minimum requirements around working hours, rest periods and accrual of annual leave. The purpose of the Directive is to make provision for the protection of the safety and health of workers.

Working time, according to the working time directive is considered to be time during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice.

The Tyco case is relevant from an Irish context in that our national courts are obliged to interpret Irish laws in line with European legislation, and decisions of the European courts. The decision has direct effect with regard to public sector workers, however legislation will be required to make it effective for private sector workers.

The Labour Court in Ireland has addressed this issue in the past.

In Breffni Carpentry Services Ltd and Deniss Solodounikovs (DWT0816) the Labour Court held that only the hours which the Complainant spent at the workplace, and not travelling time, could be regarded as working time.

In this case, however, the employee appears to have been based out of his employer’s premises.

The National Minimum Wage Act 2000

A further complicating factor in Ireland arises from the National Minimum Wage Act 2000 (NMWA), which provides a statutory basis for setting minimum rates of pay in Ireland. It also sets out the basis for calculating the working hours of an employee, to establish whether an employee is being paid the applicable minimum hourly rate of pay.

Irish cases in respect of claims for wages while travelling are likely to be brought under the heading of non payment of wages in accordance with the NMWA.

Implications for employers and employees?

Clearly, there are huge implications for Irish employer and employees if this decision is given a statutory basis in Ireland.

Employers would be well advised to agree some type of arrangement or protocol with their employees, if it is not already provided for in the contract of employment.

It would also be advisable for employers to try to schedule the first and last call of the day close to the employee’s home so that travelling time is kept to a minimum. Many employers currently do this, as well as agreeing a fixed rate for travelling time.

It is probably prudent for employers to treat travelling time in circumstances where the employee travels to a variety of locations in discharge of his/her duties as working time.

Section 15 of the Act provides that you should not be required to work more than an average of 48 hours in each 7 day period. The reference period for calculating the average is either 4 months for most employees, although there are exceptions.